ACCC consults on draft regulatory instruments and guidance ahead of the new merger regime
Australia’s merger review system will soon move to a mandatory and suspensory notification administrative regime, representing a significant departure from the longstanding voluntary informal clearance process with a judicial enforcement model.
The new system formally commences on 1 January 2026. However, parties may voluntarily notify acquisitions to the ACCC under the new system from 1 July 2025, before the mandatory notification requirements and other aspects of the new system commence on 1 January 2026.
The government and ACCC are continuing to consult on draft regulatory instruments and draft guidance, setting out important practical matters, including:
The government is currently consulting on exposure draft regulations setting out the proposed notification thresholds and forms. Submissions are due on 2 May 2025.
The ACCC recently published draft merger assessment guidelines and draft merger process guidelines for consultation, outlining the analytical framework, processes and timeframes the ACCC will apply when assessing notified acquisitions under the new regime, as the CCMR team has also reported on here and here. Submissions on the merger assessment guidelines are due by 17 April 2025 and submissions on the merger process guidelines are due by 28 April 2025.
Following the consultation processes, the ACCC will update and release the new guidelines ahead of parties being able to notify mergers voluntarily under the new clearance regime from 1 July 2025.
The ACCC anticipates it will update the guidelines over time, including to reflect decisions of the Australian Competition Tribunal as they occur.
ASIC published new guidance on sustainability
Following consultation late last year, ASIC has published a new regulatory guide RG 280 Sustainability reporting, to guide entities that are required to prepare a sustainability report containing climate-related financial information to prepare sustainability reports under Chapter 2M of the Corporations Act 2001 (Cth). The sustainability reporting requirements are being phased in over three years, with the first cohort required to prepare sustainability reports for financial years commencing on or after 1 January 2025.
RG 280 provides guidance on:
determining who must prepare a sustainability report under the Corporations Act
the content required in the sustainability report
ASIC’s expectations about disclosing sustainability-related financial information outside the sustainability report (such as in disclosure documents and product disclosure statements)
ASIC’s administration of the sustainability reporting requirements (including its specific approach to considering relief and use of its new directions power).
The publication of RG 280 follows consultation last year in response to which ASIC has:
added sections on climate scenario analysis and disclosing scope 3 greenhouse gas emissions
included more specific guidance for directors of reporting entities and additional guidance on applying the sustainability reporting thresholds
revised its position on labelling of sustainability-related information in the sustainability report
updated guidance on disclosing sustainability-related financial information outside of the sustainability report.
ASIC Commissioner Kate O’Rouke emphasised “climate-related financial information that is consistent, comparable and of high quality, facilitates confident and informed decision making by investors and other users of that information”.
You can also read more about sustainability developments in G+T and BWD’s Sustainability Insights publication (see latest and previous editions here).
Regulatory enforcement spotlight 2025: key risks, sectors and what’s next
From greenwashing, cyber security and data privacy to financial fraud, scams and directors’ duties, the regulatory heat is on in 2025. We're seeing concurrent investigations, higher penalties and increased accountability for both organisations and individuals.
A recent insight by our Disputes and Investigations team unpacks the key enforcement trends shaping 2025 and breaks them down by sector, including banking, superannuation, insurance, entertainment and gaming, fintech and digital platforms, consulting and auditing.
ASIC publishes FAQs on virtual meetings
Previously, the government convened an independent panel to review COVID-19 inspired changes to the Corporations Act and agreed in principle with the panel’s findings and recommendations.
ASIC has now released a list of frequently asked questions about holding virtual meetings for companies and registered schemes and sharing meeting documents with shareholders electronically.
The updates include setting out ASIC’s expectation that members have equivalent opportunities to participate at meetings using virtual technology as occurs for in-person meetings, and providing guidance on:
whether virtual meetings require a phone line option
the use of webcasts
how to notify ASIC once an entity’s constitution has been amended.
The FAQs represent ASIC’s expectation of what constitutes good corporate governance and its response to non-compliance with meeting requirements.
Further, in an address at the Australasian Investor Relations Association’s ‘Trends in AGM practice and shareholder engagement’ Conference in Sydney on 26 March 2025, ASIC Commissioner Kate O’Rourke noted the new guidance and also emphasised that in a time of technological change and disruption, AGMs remain a key accountability mechanism for corporate Australia; and the ability of investors to engage with directors and management and hold companies to account is a fundamental driver of good corporate governance.
Raising the bar: APRA’s enhanced governance proposals
Regulators have repeatedly stressed that weaknesses in governance underpin many of the most significant failings in the financial services industry. APRA has now published for consultation a discussion paper outlining eight proposals to strengthen its prudential governance framework for banks, insurers and superannuation trustees. Submissions are due by 6 June 2025.
A recent G+T Insight explores each of APRA’s proposals in the context of the regulator’s existing requirements, better industry practices and the need to balance the proposals with proportionality and minimising regulatory burden.
Treasury publishes updated foreign investment guidance notes
On 14 March 2025, Treasury published a number of updated Guidance Notes which introduce some noteworthy changes including:
Guidance Note 12: Tax conditions has been updated to broaden the examples of tax conditions Treasury may impose. Importantly, the concept of ‘standard tax conditions’ and ‘additional tax conditions’ have been replaced.
Guidance Note 10: Fees now provides much needed clarity on eligibility criteria for partial refunds of application fees for an unsuccessful proposal in a ‘competitive bid processes’ (i.e. a process which involves two or more participants who place bids for a particular asset and an outcome that is uncertain at the time bids are made).
Guidance Note 6: Residential land has been updated to reflect the 2 year ‘ban’ on foreign investors buying established homes to 31 March 2027 (with some limited exceptions).
Guidance Note 10: Fees has also been updated to reflect lower application fees for Build to Rent developments.
A recent G+T insight considers the updated guidance in more detail.
Supreme Court of NSW considers operation of general meeting adjournment power in Keybridge Capital
On 21 March 2025, the Supreme Court of New South Wales made a declaration that, on 10 February 2025, Keybridge Capital Limited (KBC) validly held a meeting at which its members passed resolutions proposed by WAM Active Limited (WAM) for the removal and appointment of directors.
The proceedings, which had significant bearing on simultaneous proceedings before the Takeovers Panel, involved challenges to:
the appointment of a voluntary administrator to KBC
the chair’s purported adjournment of the meeting convened by WAM under section 249F of the Corporations Act 2001 (Cth) to consider the removal and replacement of directors.
Justice Nixon considered that WAM had failed to establish that the board of directors of KBC appointed a voluntary administrator for an improper purpose.
On the adjournment point:
The KBC constitution granted the chair power to adjourn the meeting ‘either to a later time at the same meeting or to an adjourned meeting’.
In fact, shortly after the meeting opened and before the resolutions were put to the vote, the chair purported to adjourn the meeting ‘to a later date’ with details of the new time to be provided “in due course”.
Objecting shareholders then elected a new chair who, after putting the resolutions to the vote, declared that all but one had passed.
Justice Nixon made several findings on the purported adjournment, the most relevant being:
By not nominating a new date or time for the members to resume the meeting, the chair had not validly exercised the power under the constitution to ‘adjourn the meeting…… to an adjourned meeting’ as required by the constitution.
As such, the subsequent election of a new chair and passing of the resolutions at the meeting were valid.
Federal Court dismisses whistleblowing and misleading conduct claim
On 2 April 2025, the Federal Court of Australia dismissed Professor Shaun Jackson’s claims against his former employer, the Heart Research Institute Ltd (HRI), in circumstances where Professor Jackson questioned the financial management and practices of HRI in the lead up to his departure.
Professor Jackson alleged that HRI had:
Contravened whistleblower protections under the Corporations Act 2001 (Cth) (Corporations Act) by determining not to renew Professor Jackson’s employment contract.
Engaged in misleading and deceptive conduct in contravention of the Australian Consumer Law by representing that Professor Jackson’s contract would be extended by five years and that HRI would finalise and enter into a collaboration agreement with Professor Jackson’s company to commercialise a novel anti-clotting drug, TBO-319.
Justice Raper dismissed the whistleblowing claim for the following reasons:
The decision not to renew Professor Jackson’s contract was not a relevant detriment in breach of section 1317AD(1)(a), 1317ADA(b) or (j) of the Corporations Act.
HRI had discharged its onus under section 1317AD(2B) and proved that it did not hold the alleged prohibited belief or suspicion that Professor Jackson may have made, proposed to make or could have made a disclosure that qualifies for protection under the whistleblower protection provisions when engaging in the alleged detrimental conduct.
Even if it had held that prohibited belief or suspicion, HRI’s decision not to renew Professor Jackson’s contract was not motivated by it.
Justice Raper held that the second claim also failed as Professor Jackson did not establish the alleged representations were made and, even if they were, those representations were not misleading.
The case highlights the application of the legal standards for whistleblower protections and misleading conduct claims in the employment context. It also demonstrates the importance of detailed and accurate board minutes which in this case provided a clear record of the board's decision-making process and supported the testimonies of the directors, helping HRI to discharge the evidentiary burden of proof for the whistleblowing claim.
Succumbing to a threat is not enough - High Court majority arrives at an understanding about what is meant by ‘understanding’
On 2 April 2025, the High Court delivered judgment in ACCC v J Hutchinson; ACCC v CFMEU [2025] HCA 10, providing important guidance about the what constitutes an ‘understanding’. The decision is significant as a number of prohibitions under the Competition and Consumer Act 2010 (Cth) rely on establishing that a ‘contract, arrangement or understanding’ has been reached between competitors or others.
While the judgment focuses on the secondary boycott provisions, the majority decision confirms that to establish an understanding, it is not enough to try to infer that one was reached through the conduct of one party, including if they respond to a threat – communication of commitment is required.
A recent G+T Insight considers the decision and analyses the practical implications for businesses.
Proposed ban on post-employment non-compete clauses
The 2025-2026 Federal Budget proposes significant workplace reforms by banning non-compete clauses in employment contracts for workers earning under the high-income threshold (currently $175,000). While implementation is slated for 2027, the government will begin consulting on the finer details, including possible exemptions and penalties.
A recent G+T insight outlines the proposal, what it means for businesses and how employers may need to rethink their strategies.
Workplace Gender Equality reforms pass parliament
On 26 March 2025, the Workplace Gender Equality Amendment (Setting Gender Equality Targets) Bill 2024 passed through parliament. According to the Workplace Gender Equality Agency (WGEA) media release, the changes apply to nearly 2,000 employers (and will benefit 3.9 million Australian employees).
Under the amendments, employers with 500 or more employees now require a certificate of compliance under the Workplace Gender Equality Act 2012 (Cth) to secure certain government contracts over a certain procurement threshold (and avoid being publicly named as being non-compliant). To obtain such a certificate, the employer must demonstrate progress over a three-year period with three selected gender equality targets (including the gender pay gap, workforce and board composition, support for carers and parents, consultation, and prevention of sexual harassment).
Targets will need to be set for reporting periods from 1 April 2026 for private sector employees and 1 September 2026 for Commonwealth public sector employers.